Monday, July 12, 2010

Preemption and Federal Government Standing

By Mike Dorf

In my latest FindLaw column, I analyze the government's lawsuit against Arizona and the recent D. Mass decisions invalidating Section 3 of the Defense of Marriage Act, as applied to Massachusetts. I focus on two related issues: 1) How rights and federalism intertwine; and 2) the fact that states' sovereign interests need not be conservative relative to liberal federal policies. Neither point is especially novel but the juxtaposition of these two high-profile cases nicely illustrates both. Here I want to raise a somewhat more technical legal point about the lawsuit against Arizona, having to do with the legal standing of the federal government.

First, a very brief review of general principles. Article III empowers federal courts to hear "cases" and "controversies." That language, along with the background notion of separation of powers, has been the source of a set of modern limits on the jurisdiction of federal courts. The Constitution, under current doctrine, does not allow federal courts to issue advisory opinions, for such opinions do not arise in live "cases" or "controversies." Thus, a case that is not yet ripe, or which is moot, or in which a party or parties lack a real stake in the outcome, is not within federal jurisdiction. That last requirement goes under the name of "standing." It is typically contested in a case in which a private party sues either the government or another private party to stop some alleged future wrong. Unless the harm is "concrete," "imminent," and "particularized," the courts will disallow the suit.

Standing doctrine rarely plays a role in cases in which the federal government acts as plaintiff or prosecutor, but it lurks in the background. If the federal government prosecutes Robbie the Robber for bank robbery in violation of federal law, the government's concrete stake is its sovereign interest in enforcing the law. Usually when the government sues or prosecutes a case that sovereign interest is at stake, but this does not mean that the federal government automatically has standing in every conceivable case. Suppose a drunk driver negligently operates his car, crashing into my house and causing substantial property damage. I can sue the driver but the federal government has no interest in this dispute. If I choose not to sue, the driver still may be prosecuted by the state of New York for DUI, but that's because the driver's conduct infringed the state's sovereign interest in the enforcement of its penal law. Assuming that the driver violated no federal conduct rule, the federal government is a stranger to this dispute, and thus has no basis for suing.

But does this mean that the federal government has standing to sue to enforce all federal laws and constitutional provisions? Perhaps. To be sure, Congress can, in writing a statute, deprive the federal government of the power to sue to enforce. In essence, whenever Congress writes a federal statute, it is a question of statutory construction whether that statute authorizes enforcement actions in court by the federal government. (There is also a question of statutory construction whether statutes authorize enforcement via private rights of action: Of late, the answer is basically no, unless the statutory language clearly confers a private right of action.) Apart from statutory limits, are there any Article III limits on the ability of the federal Executive to bring suit to enforce federal law?

That question is lurking in the Arizona case. Clearly the federal government has standing to bring the case it has brought. Its complaint and brief in support of its motion for a preliminary injunction set out the federal government's sovereign interest in resisting Arizona's efforts to "over-enforce" federal law. (I explain in the column why the government legitimately believes such over-enforcement impairs federal interests.) In fact, the federal government seems like the ideal plaintiff to bring a lawsuit against a state claiming that some state law is preempted by federal law, even though preemption typically arises in litigation between private parties and the state: A state attempts to enforce some law against private party and the private party defends on the ground that the law is pre-empted by a federal statute; or a private party brings a lawsuit to enjoin the imminent enforcement of some state law that she alleges is preempted.

But now consider the next possible lawsuit. Suppose the federal government were to bring suit against Arizona to enjoin enforcement of its immigrant-detention law on the ground that it will lead to violations of the equal protection and Fourth Amendment rights of Latino/Latina-appearing U.S. citizens residing in Arizona. There could be a ripeness question of the sort that would arise even in a private suit, but let's assume that enforcement is sufficiently imminent to overcome that. Isn't the federal government nonetheless attempting to assert the rights of others? What is the government's concrete stake in such a case?

The answer, I think, is that the federal government ALWAYS has Article III standing to sue to enforce a federal obligation. Presumably this is why there is no problem with Congress having authorized the Justice Department to bring various civil rights lawsuits, regardless of whether the underlying rights are statutory or constitutional. The federal interest in preempting a state law that is inconsistent with federal immigration policy seems obvious because we imagine the case as a conflict between Arizona and the U.S. But we also have a conflict between Arizona and the U.S. if Arizona is allegedly violating anybody's federal rights.

None of the foregoing is to say that a lawsuit by the federal government--as opposed to litigation by private parties, administrative action, or some other means of dispute resolution--is the best approach to such cases. But it does suggest that Article III standing (as opposed to other Article III limits or statutory limits) should just about never be an obstacle to a suit by the federal government to enforce federal law.

Interestingly, there appears to be some contrary authority in the federal appeals courts, elegantly discussed (and criticized) in section 3531.11 of the Wright & Miller treatise. To my mind, however, the arguments advanced in the contrary authority do not really go to show that the federal government lacks Article III standing but go more to how to construe congressional silence on the question of whether there is, or needs to be, statutory authorization for the federal government to sue to enforce federal law.

18 comments:

(This is same as deleted comment, only some bad grammar has been corrected. Any remaining poor grammar is a reflection of my intelligence).

I'm curious as to how a federal law created by Congress could deny the Executive branch from enforcing it--besides the usual ways of not authorizing any money for enforcement, or deliberately passing a bill so extreme as to be unenforceable--but making a symbolic gesture (for example, parts of the "Violence Against Women Act" dealing with porno, or the recently struck down act prohibiting the sale of filmed depictions of animals being killed).

Say both Houses of congress pass the "Anti-Red Gumball Act," making it a federal crime to sell red gumballs in gum machines. Included in the law is a provision prohibiting the DOJ from enforcing this Act, leaving any enforcement within the discretion of state & local authorities. President O.K. Allen signs the bill into law, but (like someone else we could name) issues a signing statement, stating "I am signing this bill into law with the understanding that the DOJ is prohibited from standing to enforce this law for magenta colored gumballs only. For any other tint of red (besides magenta), the DOJ has standing to bring suit."

Six months later, the DOJ brings an action against a Mr. John Scopes for manufacturing light red gumballs. Scopes fires his previous counsel, and his new lawyer files a Motion to Dismiss for Want of Jurisdiction. What gives?

My preference would be for District Judge Sirica (assigned to hear this matter) to deny Scopes's motion (meaning no jeopardy has attached), but then dismiss without prejudice (even if on his own motion), calling the case a Political Question. Chickenshit, I know--but how much do we want federal courts in today's political questions (see, e.g., Citizens United).

The other two options are Judge Sirica grants Scopes's motion to dismiss, holding that the Constitution provides a process for enacting federal law, which does not include provisions for the President to say "Yeah, but...." Presidential signing statements then have all the authority of rantings from windbags on AM radio.

OR, Judge Sirica denys Scopes's motion, finding Congressional intent to adopt President Allen's signing statement, because no further action was taken. Had Congress REALLY wanted to strip the DOJ of light red gumball enforcement, Congress would have acted in response to President Allen's sort of Veto.....

What I don't see happening, though, is Judge Sirica striking down the attempt to strip DOJ's standing, much like when the federal courts strike down numerous asinine (a value neutral, non-judgmental expression) attempts to strip courts of jurisdiction. Congressional & Presidential morons violate separation of powers when they try to deny federal courts jurisdiction. In the above example, though, the Executive branch is voluntarily giving up some authority, when the President signs, as opposed to vetoing, the bill.

But then again, I have guessed wrong on virtually every 5-4 decision of the Roberts Court, when the majority is Roberts, Kennedy, Scalia, Voldemort, and Alito.........

1) What is the power of the President to under-enforce an Act of Congress, pursuant to a signing statement?

2) What is the power of Congress to limit Executive enforcement of federal statutes?

3) What is the power of Congress to limit Executive enforcement of the Constitution?

I wasn't addressing 1) here, although I agree that it raises all sorts of interesting puzzles. As to 2), I think the answer is that Congress has very wide latitude to enact statutes that do not provide for enforcement by the federal executive. Congress was under no obligation to create a Justice Dep't at all. But, as I'll explain in answering 3), there may nonetheless be a core of litigating power reserved to the President.

The really hard question here is 3), which, in my view, is related to the much-mooted question of the power of Congress to strip the courts of jurisdiction. Polar views are: A) Justice Scalia's view, supported by Ex Parte McCardle, that Congress is essentially omnipotent, pursuant to the Exceptions Clause and the Madisonian Compromise; and B) Justice Story's view that Congress must vest in some Article III Court the power to hear every sort of federal question case. Then there are a variety of intermediate positions. Some of these views about the limits of jurisdiction-stripping are interpretations of Article III, and thus not applicable to the President. But others--such as the influential view of Henry Hart that Congress cannot deprive the Supreme Court of its ability to perform its "essential functions"--are more structural. By analogy, I would want to say that Congress cannot deprive the President of so much of his ability to litigate federal constitutional issues as to interfere with his essential function to take care that the laws are faithfully executed. Note that it's possible that the constitutional core would include some ability to bring STATUTORY as well as constitutional cases.

Say in my gumball story, Congress enacted a law saying "Production of marijuana gumballs is prohibited, unless said production is by Estonian Americans, as defined in this statute." The law then goes on to cite whatever magic words are needed to strip the Executive of standing to either enforce or challenge the law. President OK Allen signs the bill.

Sale of marijuana is then effectively legalized under federal law, but only in the form of gumballs and by Estonians.

The next President, Andrew Lyndon Johnson is appalled by the Marijuana Gumball Act, and finds a challenge case (Defendant: John WASP Scopes). The AG files both an action to prosecute Scopes, but also--now I forgot what it's called--a motion to have the law struck down as unconstitutional. (Forget any case & controversy issues).

You're saying everyone (almost) would agree that Congress cannot block standing of the Executive to bring an action on Constitutional grounds (like equal protection), but MAY (depending on whose view) be able to tie the hands of the Executive branch on strictly statutory grounds. Here, because Congress is trying to tie the hands of the Executive's police power, courts would be more likely to call that a bozo no-no, because if anything is an "essential function" of the Executive, it's po-lease-ing... But for something less "essential" (unspecified), more deference might be given to Congressional intent.

That seems slippery slopey to me. But then again, I'm the kind of guy who would have ruled the other way on Clinton v. Jones, citing to the Penumbra...

All in all, thank you for a really interesting note on standing (god--I never thought I'd live to see the day I'd use "interesting" and "standing" in the same sentence).

"Instead, Judge Tauro treated the case as raising the narrower question of whether, as applied in a state such as Massachusetts in which same-sex marriage is legal, the federal law satisfies the Equal Protection Clause's minimal requirement of rationality."

How does a state's definition of marriage play to whether the federal government is properly adhering to the equal protection clause? If the feds were to deny black people equal treatment facially, what difference does it make that state 1 does the same, while state 2 doesn't? It's either rational as a matter of equal protection or not, no?

Also, I'm guessing that this is an example of "equal protection" within the due process clause of the 5th Amendment, right? The 14th is about states.

In response to B.A.'s latest, just to be clear, even the people who (like Justice Scalia following McCardle) think Congress omnipotent, only think that this means that Article III itself poses no limits on the power of Congress to strip courts of jurisdiction. They acknowledge that there are what the literature calls "external" limits on "jurisdictional gerrymandering." Thus, a law that stripped the Supreme Court of appellate jurisdiction in "all cases in which the petitioner is a woman" would deny equal protection (and yes, egarber, equal protection as a component of fifth amendment due process). Likewise, whatever limits Article II imposes on Congress's power to restrict the President's ability to litigate federal issues are IN ADDITION to external limits of this sort.

As to egarber's core question, the D Mass decision appears to accept arguendo that even if it were rational for a state to deny recognition to same-sex marriages, it is still irrational for the federal government to treat as unmarried for federal purposes same-sex couples who are married pursuant to state law in a state that does recognize same-sex marriage. I'm not sure I agree with that, but I do think it's a logically coherent position.

How is it that Article III, Sec. 2, clause 2 is not applicable here? How can the federal court sue the State, obtaining substantive relief in a lower court? The lower court has made a ruling which declares parts of the Arizona's law unconstitutional. Does not jurisdiction for relief belong solely to the Supreme Court? This is, after all, a lawsuit by the federal government against a state, not an individual. I have to wonder at the jurisdictional issue presented.

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